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Reed v. Dynamic Pet Products

United States District Court, S.D. California

July 21, 2016



          WILLIAM Q. HAYES United States District Judge.

         The matter before the Court is the motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (ECF No. 40) filed by Defendants Dynamic Pet Products and Frick's Meat Products, Inc.

         I. Background

         On May 1, 2015, Plaintiff Khristie Reed commenced this action on behalf of herself and others similarly situated by filing the Class Action Complaint in this Court. (ECF No. 1). On June 16, 2015, Defendants Dynamic Pet Products ("Dynamic") and Frick's Meat Products, Inc. ("Frick's") filed a motion to dismiss and a motion to strike. (ECF Nos. 8, 9). On July 30, 2015, the Court granted Defendants' motion in part and denied it in part. (ECF No. 18).

         On January 15, 2016, Plaintiffs filed a first amended complaint. On January 26, 2016, Plaintiffs filed a second amended complaint ("SAC"), which is the operative complaint. (ECF No. 37). Plaintiffs plead causes of action for: (1) fraud; (2) negligent misrepresentation; (3) violation of the California Consumers Legal Remedies Act ("CLRA"), California Civil Code section 1750, et seq.; (4) violation of California Business and Professions Code section 17200, et seq. ("UCL"); (5) breach of implied warranty; (6) violation of the Florida Deceptive and Unfair Trade Practices Act, Florida Statute § 501.201, et seq.; (7) Violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1, et seq.; (8) violation of the Louisiana Unfair Trade Practices and Consumer Protection Law, Louisiana Revised Statute § 51:1401, et seq.; (9) violation of the Minnesota Consumer Protection Act, Minnesota Statute §§ 325F.67 et seq.; (10) violation of the New York Consumer Protection from Deceptive Practices Act, New York General Business Law § 349, et seq.; (11) violation of the North Carolina Consumer Protection Act, North Carolina General Statute § 75-1.1, et seq.; (12) violation of the Oregon Unlawful Trade Practices Act, Oregon Revised Statute § § 646.60 5 et seq.; and (13) violation of the Washington Consumer Protection Act, Washington Revised Code §§ 19.86.010, et seq. Plaintiffs request general damages, punitive damages, restitution, disgorgement, equitable relief, and attorneys' fees and costs.

         On February 9, 2016, Defendants filed the motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 40). On February 29, 2016, Plaintiffs filed a response in opposition. (ECF No. 43). On March 7, 2016, Defendants filed a reply. (ECF No. 44).

         II. Allegations of the Complaint

This is a consumer protection class action arising out of misrepresentations and omissions made by Defendants Dynamic Pet Products, LLC and Frick's Meat Products, Inc. regarding the Real Ham Bone For Dogs. Frick's is a meat product manufacturer. In an effort to profit from the waste produced by slaughterhouses and meat manufacturers, Frick's or its principals created Dynamic to sell waste ham bones to pet owners. Through Dynamic, a wholly owned subsidiary of Frick' s, Defendants manufacture, market and sell the Real Ham Bone For Dogs as an appropriate and safe chew toy for dogs. Indeed, on each product label and as the name suggests, Defendants explicitly market the Dynamic Real Ham Bone For Dogs as a chew toy for dogs.

(ECF No. 37 ¶1). "To profit from the waste resulting from the manufacture of its products, Frick's, or its principals, created Dynamic to sell waste pig bones to pet owners, marketing them as appropriate and safe for dogs." Id. ¶ 22. Defendants Frick's Meat Products, Inc. and Dynamic Pet Products are Missouri Corporations. Id. ¶¶19, 20. "Dynamic and Frick's are the alter egos of one another and operate as a single business enterprise for the production, marketing and sale of the Real Ham Bone For Dogs." Id. ¶21. "Dynamic and Frick's share the same ownership, management and headquarters." Id. "Frick's and Dynamic work in concert with each other to profit from the sale of waste ham bones by marketing them to pet owners as safe and appropriate chew toys for dogs, when they are not." Id.

         "The Real Ham Bone For Dogs is not a safe or appropriate chew toy for dogs, and is not fit for its intended purpose, despite Defendants' contrary representations." Id. ¶2. "The Real Ham Bone For Dogs is an 8" hickory-smoked pig femur, which when chewed is prone to splintering into shards. When swallowed, these shards slice through dogs' digestive systems and cause severe internal injuries. Thousands of dogs have suffered a terrible array of illnesses, including stomach, intestinal and rectal bleeding, vomiting, diarrhea, constipation and seizures, and have died gruesome, bloody deaths as a result of chewing Defendants' Real Ham Bone For Dogs." Id.

         The Complaint alleges that the Food and Drug Administration stated that bones such as the Real Ham Bone For Dogs are not safe for dogs. The Complaint alleges that the Missouri Better Business Bureau "issued a warning to Defendants about the dangers posed by their Real Ham Bone For Dogs product" but "Defendants ignored this notice." Id. at 52. The Complaint quotes fifteen complaints made by pet owners online or to Dynamic directly. For example, the Complaint alleges that one pet owner complained that her dog suffered "shock and couldn't move . . . puked and had Diarrhea and couldn't stand up ... [and] spent 3 days in the hospital on iv's [sic]" as a result of ingesting the Real Ham Bone for Dogs. Id. ¶ 51.

         "Despite having knowledge that Real Ham Bones For Dogs is inherently dangerous for dogs, Defendants represent the opposite." Id. ¶ 57. "None of the instructions on the product's packaging or in other marketing informed Plaintiffs or other consumers that allowing dogs to chew on the Real Ham Bone For Dogs as instructed on the labeling would pose a significant risk of serious illness or death." Id. ¶ 58. "Nowhere do Defendants state the truth - that the Real Ham Bone For Dogs is a dangerous product that should not be given to dogs." Id. The Complaint alleges that the label of each Real Ham Bone For Dogs misrepresents that it is "safe for your pet" and is "meant to be chewed." Id. ¶ 5.

         The Complaint alleges that Plaintiff Khristie Reed purchased the Real Ham Bone For Dogs from Wal-Mart in Oceanside, California, on March 1, 2015.

When Plaintiff returned home from Wal-Mart, she gave the Real Ham Bone For Dogs to Fred, her healthy nine-year-old basset hound. Plaintiff watched Fred chew on the Real Ham Bone For Dogs for approximately one hour, after which point Fred walked away and did not chew on it again. The next day, Monday March 2. 2015. Fred was lethargic and vomiting blood. Plaintiff immediately rushed Fred to California Veterinary Specialists in Carlsbad, California. The veterinarian told Plaintiff that Fred was gravely ill and there was no guarantee that surgery would save him. According to the veterinarian, the only way to alleviate Fred's suffering was to put him to sleep. Plaintiff took the veterinarian's advice and Fred was euthanized that evening.

Id. 126.[1]

         The Complaint defines the proposed class as "[a]ll persons who purchased one or more Real Ham Bone For Dogs other than for purpose of resale." Id.¶ 61. Attached to the Complaint as Exhibit A is a May 1, 2015 letter from Plaintiffs' counsel to David S. Frick, owner of Dynamic Pet Products, requesting that "Defendants immediately correct and rectify these violations by ceasing dissemination of false and misleading information as described in the enclosed Complaint...." (ECF No. 37-1 at 3).

         III. Discussion

         Defendants contend the Court should dismiss: (1) Plaintiffs' implied warranty claim on the ground that there is no vertical privity between Plaintiff and Defendants; (2) Plaintiff Benesch's Louisiana consumer protection claim because the Louisiana consumer protection statute prohibits class action claims; (3) all of Plaintiffs' claims relating to the risk of splintering because the product label contained an express waiver of liability and assumption of risk that the bone would splinter; (4) Plaintiffs' misrepresentation claims based on Dynamic's website and other "unnamed marketing" because the allegations are vague and conclusory; (5) Plaintiff Brandel's Florida consumer protection claims because Brandel cannot establish causation for her claim and the Florida statute excludes claims for damage to property; (6) Plaintiff Rodney Cannut's claim because he did not read the label or purchase the bone; and (7) Plaintiffs' SAC because it fails to identify which remedies are sought under each separate cause of action.

         Plaintiffs oppose the motion to dismiss and requests leave to amend should Defendants' motion be granted in any respect.

         A. 12(b)(6) Standard

         Federal Rule of Civil Procedure 12(b)(6) permits dismissal for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Federal Rule of Civil Procedure 8(a) provides that "[a] pleading that states a claim for relief must contain... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "A district court's dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is proper if there is a 'lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.'" Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Balistreri v. Pacifica Police Dep't 901 F.2d 696, 699 (9th Cir. 1990)).

         "[A] plaintiff s obligation to provide the 'grounds' of his 'entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl Corp. v. Twombly,550 U.S. 544, 555 (2007) (quoting Fed.R.Civ.P. 8(a)). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citation omitted). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citation omitted). "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 679. "In sum, for a complaint to survive a ...

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